KESHO PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) BOTH these appeals arise out of Sessions Trial No 146 of 2005 in which judgment was delivered by the Additional Sessions Judge I, Bhojpur at Ara on 15.07.2005 convicting the appellants under Section 302 of Indian Penal Code (IPC) for committing the murder of Purnamasi Paswan. The two appellants are father and son respectively in the two appeals. We have heard the learned counsels for the appellants in the two appeals and the learned Additional Public Prosecutor (APP) Shri Ashwani Kumar Sinha at length.

(2.) THE prosecution case starts from the first information report (FIR) which was lodged in the early hours (6.15 am) on 24.03.2004 with regard to an incident that took place on the previous night at 8 pm on 23.03.2004. The Fardbayan on basis of which the FIR was lodged was the statement of Purnamasi Paswan who is the deceased. It was recorded at 3 am on 24.03.2004 at the Referral Hospital, Shahpur by Sub-Inspector (SI) Jagdish Prasad (PW 9) of Shahpur Police Station (PS). This Fardbayan has been exhibited as Exhibit-3. In the fardbayan, it is stated that when Purnamasi Paswan, the deceased was sitting in his timber shop in the evening, three persons that is Deo Pawan, his son Kesho Paswan, appellants armed with lathi and knife alongwith Mangru Paswan who was armed with bhala came there and assaulted him and from his person took out Rs 4,000.00 and when upon alarm being raised, several villagers including Umesh Paswan (PW 1), Ayodhya Paswan (PW 4) and Ramu Paswan (not examined), Krishna Paswan (not examined) came, the miscreants ran away. In the Fardbayan, it is clearly stated that Mangru Paswan, one of the miscreants was standing separately and, as such, had not taken part in the assault. Upon this Fardbayan, case, interlia, under Sections 307 and 379 IPC was registered. Formal FIR is Exhibit-4. It appears that the informant died in course of treatment and as such the case was converted as to one under Section 302, IPC. Police investigated the case and submitted chargesheet against four persons that is appellant Deo Paswan, appellant Kesho Paswan and Mangru Paswan and Umesh Ojha. Upon the case being committed to the Court of Session and the accused persons pleading not guilty, charges were framed against all the accused persons under Sections 302/34 and Section 379, IPC by the trial Court. Upon evidence being recorded, the trial Court acquitted Mangru Paswan and Umesh Ojha, inter alia, on the ground that so far as Mangru Paswan is concerned, even as per the Fardbayan, he did not take part in the assault and no substantial evidence came against him. So far as Umesh Ojha is concerned, he was acquitted, inter alia, on the ground that though he was known to the informant, he was not named in the FIR and his name was only subsequently introduced in course of investigation. It may be noted here that there is no appeal by either the State or from the informant side against these two persons.

(3.) LEARNED counsels for the appellants submit that the trial Court erred in treating the statement of the informant to be virtually a dying declaration. It was not recorded in presence of a Magistrate or under orders of a Magistrate. In our view, the contention is to be recorded only to be rejected. This position has been dealt in detail by the Apex Court, as cited by Shri Ashwani Kumar Sinha, learned APP, in the case of Kulwant Singh and others ­Versus- State of Punjab, 2004 Supreme Court Cases (Cri) 1441 and, in particular, paragraphs-35 to 40 of the reports which are quoted hereunder :